A TRAJETÓRIA NORMATIVA DA MEDIAÇÃO: UM DIÁLOGO ENTRE BRASIL E ITÁLIA

Abstract

The contemporary resurgence of mediation is a diversified process that is significantly influenced by the existing national legal systems in each country. It is important to recognize that the diversification of mediation practices in different countries is singularized from two factors that can be highlighted as determinants: the historical context of mediation development and normative regulation. With that being said, the main objective of this article is to analyze the development of mediation in Italy, with a focus on regulatory norms, in order to foster a dialogue with mediation in Brazil. In this perspective, the present research is justified by the similarity between the social regulation systems of Brazil and Italy, since both can be considered as States that constitute typical examples of countries that adopt civil law as their legal matrix. Thus, an important contraposition is made to the North American model of mediation, based on a legal system characteristic of the common law. In that sense, the study aims to address the following question: what are the unique characteristics of the normative path of mediation in Brazil and Italy? To accomplish this, a descriptive study was conducted, utilizing a comparative approach to examine the development of the institution of mediation in Brazil and Italy, with particular emphasis on the analysis of the historical context and regulatory milestones. Ultimately, the study identified the following: the influence of the North American model on the development of mediation in Brazil and Italy; the external origin of normative regulation of the institution, separate from the national legislative power; significant conceptual differences between mediation and conciliation; and, finally, the existence of distinct possibilities for the application of the institution, depending on the nature of the rights subject to the conflict. Thus, despite the similarity of their legal systems and the strong American influence, it can be concluded that mediation in Brazil and Italy developed in highly distinctive ways in each country, with only a few points of contact.